**Exhibit 10.4**

 

**SEPARATION AGREEMENT AND RELEASE (CHINA)**

 

This Separation Agreement and Release (this “China Release”) is made byand between Ying Wu (“Employee”) and UTStarcom (China) Co., Ltd. (the “Company”)(collectively, referred to as the “Parties” or individually, referred to as a “Party”).

 

WHEREAS, the Parties wish to resolve any and all disputes, claims,complaints, grievances, charges, actions, petitions, and demands that theEmployee may have against the Company and any of the Releasees as definedbelow, including, but not limited to, any and all claims arising out of or inany way related to Employee’s employment with or separation from the Company;

 

WHEREAS, concurrently with this Agreement, Employee and UTStarcom, Inc.are entering into the Separation Agreement and Release (California) dated evendate herewith and to which this China Release is attached as Exhibit B(the “Agreement”);

 

NOW, THEREFORE, in consideration of the mutual promises made herein,the Company and Employee hereby agree as follows:

 

1.               Consideration.  The Company agrees to provide Employee theconsideration set forth in Section 1 of the Agreement, which is a lump sumpayment of twelve (12) months of Employee’s base salary as in effect as of thedate of such termination plus an additional one hundred thousand USD ($100,000)dollars, (subject to and reduced by the individual income tax), payable withinten (10) days after the Effective Date of the Agreement.

 

2.               Releaseof Claims.  Employee agrees that theforegoing consideration represents settlement in full of all outstandingobligations owed to Employee by the Company and its current and formerofficers, directors, employees, agents, investors, attorneys, shareholders,administrators, affiliates, divisions, and subsidiaries, and predecessor andsuccessor corporations and assigns (collectively, the “Releasees”).  Employee, on his own behalf and on behalf ofhis respective heirs, family members, executors, agents, and assigns, herebyand forever releases the Releasees from, and agrees not to sue concerning, orin any manner to institute, prosecute, or pursue, any claim, complaint, charge,duty, obligation, or cause of action relating to any matters of any kind,whether presently known or unknown, suspected or unsuspected, that Employee maypossess against any of the Releasees arising from any omissions, acts, facts,or damages that have occurred up until and including the Effective Date of thisAgreement, including, without limitation, any and all claims:  for violation of any applicable laws, except as prohibited by law; relating to orarising from Employee’s employment relationship with the Company and thetermination of that relationship; arising out of any other laws and regulationsrelating to employment or employment discrimination; for any loss, cost,damage, or expense arising out of any dispute over the non-withholding or othertax treatment of any of the proceeds received by Employee as a result of thisAgreement; for wrongful discharge of employment or any theory based on contract,common law, or any statute; and for fraud, negligent or intentionalmisrepresentation, negligent or intentional interference with contract orprospective economic advantage, unfair business practices, defamation, libel,and slander.

 

3.               Employment Relationship.  TheParties acknowledge and agree that the employment relationship between theParties terminated on June 1, 2007.

 

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4.               Non-Disparagement.  Employee agrees to refrain from anydisparagement, defamation, libel, or slander of any of the Releasees, andagrees to refrain from any tortious interference with the contracts andrelationships of any of the Releasees.

 

5.               CompanyProperty.  Employee acknowledges thathe has returned to the Company all company property, including but not limitedto his computer laptop, and any documents that were in his possession, custody,or control prior to the Effective Date.

 

6.               Choice of Law.  TheChina Release is governed and construed by the laws of the People’s Republic ofChina.

 

7.               Dispute Process. Any dispute arising from or relating to this ChinaRelease shall besubmitted to the labor dispute arbitration tribunal in the place where theCompany is located for arbitration.

 

8.               Integration.  The Agreement, including Exhibits A and B,together with any fully executed stock option agreements between the Parties,represent the entire agreement and understanding between the Parties as to thesubject matter herein and supersedes all prior or contemporaneous agreements,whether written or oral.

 

9.               EffectiveDate.  Each Party has seven (7) daysafter that Party signs the Agreement and this Exhibit B to revoke it.  TheAgreement will become effective on the eighth (8th) day after Employee signedthe Agreement and this Exhibit B, so long as it has been signed by the Partiesand has not been revoked by either Party before that date (the “Effective Date”).

 

10.         VoluntaryExecution of Agreement.  Employeeunderstands and agrees that he executed the Agreement, including this Exhibit B,voluntarily, without any duress or undue influence on the part of the Companyor any third party, with the full intent of releasing all of his claims againstthe Company and any of the other Releasees. Employee acknowledges that:  hehas read the Agreement; he has been represented in the preparation,negotiation, and execution of the Agreement by legal counsel of his own choiceor has elected not to retain legal counsel; he understands the terms andconsequences of the Agreement and of the releases it contains; and he is fullyaware of the legal and binding effect of the Agreement and its Exhibits.

 

IN WITNESSWHEREOF, the Parties have executed this Agreement on the dates set forth below.

 
|                      | YING WU, an individual       |
|---------------------------|------------------------------|
|                      |                         |
| Dated: July 25, 2008 | /s/ Ying Wu                  |
|                      |                         |
|                      | Ying Wu                      |
|                      |                         |
|                      |                         |
|                      | UTSTARCOM  (China) Co., Ltd. |
|                      |                         |
| Dated: July 25, 2008 | By                           | /s/ Hong Liang Lu |
|                      |                         | Hong Liang Lu, legal representative |

 

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